Deprivation of liberty: authorisation of steps necessary for life-sustaining treatment or vital act

Mental Capacity (Amendment) Bill [Lords] – in a Public Bill Committee at 10:45 am on 22nd January 2019.

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Photo of Barbara Keeley Barbara Keeley Shadow Minister (Mental Health and Social Care) 10:45 am, 22nd January 2019

I beg to move amendment 16, in clause 2, page 2, line 12, at end insert—

“for a maximum period of 14 days”.

This amendment will limit the duration of an emergency authorisation to 14 days.

This amendment and the next to be debated deal with the proposed system for emergency authorisations of deprivation of liberty. In most cases, emergency authorisations should not be needed. An authorisation can be made up to 28 days before the arrangements are due to come into force, and with proper care planning that should mean that liberty protection safeguards are applied for and enacted before someone is deprived of their liberty. That is also the case under the current system, in which applications can be made 28 days in advance—indeed, it is expected that applications will be made before arrangements need to come into force, if at all possible. None the less, data from NHS Digital shows that last year more applications were made for urgent authorisations than for standard ones, which suggests that care homes and hospitals are either unable or unwilling to apply for a deprivation of liberty safeguard until the point at which such deprivation must occur immediately.

I know that the Minister will want all applications to be made and decided in advance, to ensure that people receive the proper protection but, as one DoLS lead said to me recently, simply wanting it will not make it happen. Under the new liberty protection safeguards, there will be no system for urgent applications. Either a standard application will have to be made or the person will be held under an emergency authorisation. That is worrying, given that emergency authorisations come with far fewer safeguards than full authorisations. Amendments 16 and 17, therefore, aim to strengthen the safeguards applied to emergency authorisations, to prevent their misuse.

Amendment 16 would limit the time during which an emergency authorisation can be in place. I do not think that anyone on the Committee would be sad to see the end of urgent authorisations, and I am sure that the Minister agrees that it was unacceptable that care providers were able to self-certify that deprivation of liberty was both acceptable and required. We must do everything in our power to prevent a repetition of that, so I am glad that urgent authorisations have been taken out of the Bill. However, as in all our work on the Bill, we must ensure that we do not implement a flawed process purely because what came before was worse. We should strive to create a genuinely better system.

The Law Commission shares the view that the system of urgent safeguards no longer works, which is why it proposed the change to emergency authorisations. Although that still allows a degree of self-certification, it requires a far higher bar to be cleared. No longer will an organisation be able to self-certify a deprivation of liberty purely because it believes it is urgently needed; instead, the power will be available only when doing otherwise would have a fatal impact on the cared-for person. There will of course be occasions when that is necessary—scenarios that could not have been foreseen—and in such cases it is important that people are not denied treatment because of the legal requirements, but it does not mean that we should ignore the vital safeguards that people must be entitled to.

The principle is clear: deprivation of liberty should normally be authorised through the proper processes, as set out in schedule 1. The only exception is where there is no way to get the relevant permission in time to deliver life-saving treatment. To ensure that the power is used for only the shortest possible periods, the amendment would put a time limit on it. Under the current deprivation of liberty safeguards, an urgent authorisation can last for seven days and can be renewed for a further seven; at the end of that 14-day period, the only way to continue to deprive someone of their liberty is to apply for, and be granted, a standard authorisation. That provides an important check. It means that a care provider can deprive someone of their liberty for a maximum of 14 days without the involvement of external assessors.

Under the Government’s proposals in the Bill, there is no such check. Instead, an emergency authorisation can run indefinitely, subject to two checks. The first check is that the arrangements are still needed to provide life-sustaining treatment. In the case of someone who requires a respirator or drip-fed medication, that could easily carry on beyond a few days—it could last for years. The second check is that a further decision is being sought from either the courts or the responsible body. However, a recent study by Cardiff University found that appeals under section 21A of the Mental Capacity Act 2005 took a median of five months to be heard. Even if cases relating to emergency authorisations are heard quickly, we are still likely to be talking about months, rather than days, before a case is decided.

One of the Law Commission’s reservations about imposing a time limit on emergency authorisations was the concern that responsible bodies might not always be able to arrange assessments quickly enough. There is a simple solution to that, which does not water down people’s rights. If we want responsible bodies to be able to deliver the scheme, or indeed any other scheme, we need to resource them properly. If they have the resources and staff they need, there is no reason why we cannot ask them to complete assessments in a timely manner.

The Law Commission also said that it was concerned that a maximum authorisation period for emergency authorisations would become the target for assessing the cared-for person, and we have a similar concern. Without an end date to the authorisation, what incentive would the responsible body have to expedite the assessment process? With no hard deadline by which to complete it, there is a danger that other cases would take priority. Given that anyone subject to an emergency authorisation has few, if any, safeguards, we cannot allow this to happen. Through this amendment, we are seeking to ensure that nobody is deprived of their liberty for long periods of time while waiting on a court or other assessment. I hope that the Committee accepts the amendment.

Photo of Alex Cunningham Alex Cunningham Labour, Stockton North 11:00 am, 22nd January 2019

I find it incomprehensible that any emergency authorisation would need to last longer than 14 days. An emergency is just that: it is a serious, unexpected and often dangerous situation requiring immediate attention. That is my online dictionary definition. Once that emergency has been dealt with and the dangerous situation averted, the normal approach should then be adopted. Why on earth would the authorities need to detain a person for many weeks on end without carrying out that full assessment under the law? I suspect the Minister agrees that emergency authorisations would not need to be in place for very long, so everything would be fine and there would be no risk to the person involved. Sadly, nothing in this Bill nails that down. I hope she will have no problem providing us with a guarantee, or supporting this amendment—the real guarantee—to limit that duration of emergency authorisation to 14 days.

We must always take every opportunity to make sure that every precaution is there to ensure that those under emergency authorisations have safeguards and protections. We have been talking about it for days on end. Those authorisations are to be in place so that a person cannot face an indefinite order against them. Not just those of us on the Opposition Benches think that. No fewer than 200 people from my constituency have either commented on this Bill or have signed a petition through 38 Degrees calling for the kind of safeguards in the Bill for which we have been arguing. They are worried about the further erosion of an individual’s rights by the clause if it is not amended.

At every point in this Bill I have posed myself this same question: what does it mean to younger people—the 16 and 17-year-olds—who are captured by it? As I read it, a young person could be detained under these emergency powers. We have talked about insufficient safeguards for young people and parents under the Bill. Who knows how long it could be before they are fully assessed, even when the views of their parents or others were taken into consideration?

According to the Law Society, the Bill

“gives wide-ranging powers for depriving a person’s liberty through emergency authorisations for unlimited periods of time where a “vital act” is deemed necessary. We believe this is unlawful.”

What action will the Minister take to ensure that such actions are not unlawful, as suggested by the Law Society? Although she said that the risks being taken in the care of vulnerable people are simply not there, she needs to convince us or support the amendment. The Law Society goes on to support the amendment in its evidence submission, saying that a

“time limit of 14 days is essential to prevent abuse in accordance with case law”.

Members have spoken at length and given full examples of how the Bill and proposed amendments could play out or have played out in the real world. It is also vital that we take note and address the issues that may arise outside this place in regards to any legislation introduced by us. Imagine the danger we could be unwillingly putting vulnerable people in if we do not pass the 14-day authorisation limit. A person under such an authorisation could be left for months and denied their freedom with no one having carried out a full assessment, perhaps because it is in the best interests of the person that has assessed them or not assessed them—a care home manager or an independent hospital director. Whatever it is, we have a duty of care over those deprived of their liberty under the measures. The Bill falls short of ensuring that we properly protect and safeguard them.

We have debated authorisation renewals. This measure falls into a similar category in that we should provide adequate checks to ensure that people are not needlessly deprived of their liberty for any unnecessary time. I am not convinced we are there yet. Within those 14 days there is an expectation that an adequate, comprehensive assessment will be carried out to determine whether the cared-for person meets the authorisation conditions. If it is more than 14 days, who is going to tell us when it will happen?

Photo of Steve McCabe Steve McCabe Labour, Birmingham, Selly Oak

I do not know whether I am being a bit paranoid about this, but is there a danger that this could become the easy get-out clause? It will be a bit complicated to get all the parties together and carry out a proper assessment, but it will not be as difficult to get someone to say, “Ah—there’s an emergency.” That way, they have dealt with the paperwork in one fell swoop and they have the person where they want them. If there are no safeguards, it will become the clause that will bypass the rest of the legislation, because this is where people will go when they do not want to put in the work or they feel too hard pressed to do it.

Photo of Alex Cunningham Alex Cunningham Labour, Stockton North

I share my hon. Friend’s paranoia. I do not understand why we would put any barriers at all in the way of people’s having a proper assessment within a reasonable time. Detaining someone for 14 days is effectively locking them up for 14 days. It means depriving them of their liberty and there may be no real necessity. An assessment, as quickly as possible, is essential.

Of course, if we allow those authorisations to go on for longer than 14 days or any other reasonable timeframe, we are putting people at risk of abuse, as the Law Society has said. I say to the Minister that we must put vulnerable people first. We must always put the individual first. We must have the safeguards in place, because to do anything else is to risk their liberty, and that is a risk I am not prepared to take. I hope she accepts the amendment.

Photo of Caroline Dinenage Caroline Dinenage Minister of State (Department of Health and Social Care)

Clause 2 allows caregivers, in limited situations, to deprive someone of their liberty for a short period of time prior to an authorisation being in place or in an emergency. That can be done only to provide the person with life-sustaining treatment or to prevent a serious deterioration in their condition. The clause enables a care home to place restrictions on the person for their own protection ahead of an authorisation being approved. That interim legal cover will be decision-specific and it will be targeted to life-sustaining treatment and care or to a vital act. Once those acts are completed, the conditions no longer apply and legal cover for depriving someone of their liberty ends.

In that way, the clause replicates clause 4B of the Mental Health Act 2005, already in DoLS. The emergency authorisation system applies in exactly the same way when a court application being made relates to a deprivation of liberty. There is no evidence at this time that it would lead to any lengthy deprivation of liberty, and the provision of the Bill builds on an existing and well-understood provision. The previous system also included an urgent authorisation. That has gone because it was used too often and its time limit was ineffectual.

Under the Bill, the legal cover is provided simply for as long as the life-sustaining care is needed and no longer. It is therefore a limited power and a better safeguard. An emergency is defined as a situation where there is an urgent need to act and it is not “reasonably practicable” to make an application under the liberty protection safeguards to the Court of Protection or under part 2 of the Mental Health Act. It was carefully considered by the Law Commission, which looked at the inclusion of a time limit and decided against it. We agree with its conclusion that a time limit could encourage care providers to aim for the time allowed rather than to adhere to best practice for that case and that person, which is certainly what we have seen in some urgent cases.

Given the seriousness of depriving someone of their liberty, it should be limited to the shortest possible timescale and should reflect the huge range of causes that it can be required to cover. The amendment would create a blunt, one-size-fits-all approach, rather than allowing us to reflect the different approaches called for.

Photo of Steve McCabe Steve McCabe Labour, Birmingham, Selly Oak

The Minister cites the Law Commission, but is it not the case that the Law Society recommended this very type of safeguard?

Photo of Caroline Dinenage Caroline Dinenage Minister of State (Department of Health and Social Care)

I do not know about the Law Society. The Law Commission was tasked with reviewing the measure—it took three years to do so. The commission took evidence from across the sector and we have used its recommendations as the basis for this provision.

Photo of Barbara Keeley Barbara Keeley Shadow Minister (Mental Health and Social Care)

It is interesting that the Minister is being so selective about which of the Law Commission’s recommendations she is accepting. I challenged her earlier about a recommendation that she had accepted at the time it was made and which has not been taken further in the Bill. This is a five-clause Bill, which Opposition Members have had to battle our way through. It is not the fifteen-clause draft Bill that the Law Commission brought forward, which had been consulted on. It is rather rich of the Minister at this point, when it suits her, to be quoting the Law Commission’s recommendations and adopting them when she has not accepted them on many other occasions, including the one on which I moved an amendment this morning.

Photo of Caroline Dinenage Caroline Dinenage Minister of State (Department of Health and Social Care)

The reason for that is quite simple. The Law Commission’s draft Bill had a whole lot more scope and took into it things that we have not been able to look at as part of this particular revision of DoLS, on which we want to focus. We are painfully aware of the fact that 125,000 people are still in a backlog, waiting for DoLS. They do not have the protections that they need; the families do not have the reassurance; and the people caring for them do not have the protection of the law. That is why, necessarily, this had to be a very narrow Bill. Where possible, though, we have taken the words of the Law Commission to its very heart.

Photo of Barbara Keeley Barbara Keeley Shadow Minister (Mental Health and Social Care)

I am astonished that the Minister thinks it is okay not very long ago this morning to not accept a Law Commission recommendation and then, in her very next speech, to put forward such a recommendation as the main reason for turning down an amendment. There is an astonishing lack of logic.

Opposition Members believe that it cannot be right that emergency authorisations have no time limit. There is a concern that it could become easy to drop into using the provision given that there is no time limit on it. We can how, given how systems are designed, people can get into going to the easiest place. If it is the easiest place to deprive someone of their liberty, that situation can become dangerous.

By failing to include a time limit, the Bill fails to incentivise local authorities and the courts to hear emergency authorisation cases promptly. There is no time pressure on them—they can take as long as they like. Applications can already take too long to process and, without a hard end date, they could drag on for weeks or months. The emergency authorisations contain far fewer safeguards than full authorisations, and as such Opposition Members believe that they should be used only sparingly and for brief periods.

Question put, That the amendment be made.

The Committee divided:

Ayes 8, Noes 9.

Division number 22 Mental Capacity (Amendment) Bill [Lords] — Deprivation of liberty: authorisation of steps necessary for life-sustaining treatment or vital act

Aye: 8 MPs

No: 9 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

Question accordingly negatived.

Photo of Barbara Keeley Barbara Keeley Shadow Minister (Mental Health and Social Care)

I beg to move amendment 17, in clause 2, page 3, line 4, at end insert—

“(10) Where this section is relied on to deprive a cared-for person of his liberty, the person relying on this section must—

(a) inform the cared-for person and any person with an interest in the cared-for person’s welfare of that fact;

(b) keep a written record of the reasons for relying on this section;

(c) supply a copy of the written record of reasons to the cared-for person and any person with an interest in the cared-for person’s welfare within 24 hours of the deprivation of liberty commencing; and

(d) if any of the following apply, make an application to the Court of Protection immediately—

(i) the cared-for person objects to being deprived of his liberty;

(ii) a person with an interest in the welfare of the cared-for person objects to the cared-for person being deprived of his liberty; or

(iii) the donee of a lasting power of attorney or a court-appointed deputy objects to the cared-for person being deprived of his liberty.”

This amendment will ensure that information is shared with the cared-for person and any person of interest in the cared for person’s welfare and sets out when an application to the Court of Protection must be made immediately.

Amendment 17 builds on the comments I made in relation to amendment 16. Throughout the two amendments, our concern has been that people subject to emergency authorisations do not currently have the same protections as others who are detained under the liberty protection safeguards. We recognise that there might be a need in certain rare cases to circumvent full assessment for a short period, but it is not acceptable that the Bill provides almost no surety against the system being misused, as we discussed in the debate on amendment 16. That amendment dealt with the length of time for which an emergency authorisation could be in force. Amendment 17, on the other hand, deals with the rights of a person who is subject to an emergency authorisation. Our aim is to ensure that a person’s rights to information and appeal are not watered down because they are subject to an emergency authorisation.

Before I discuss the amendment in detail, I want to give hon. Members an example of why the process for urgent authorisations needs reform. The Minister and other Members will have heard the case of Oliver McGowan, which I have raised before in Committee. Oliver was autistic, had a mild learning disability and had full life expectancy. Indeed, he was fit, active and training to be an Paralympian athlete. He was admitted to A&E for absence-type seizures. He was not psychotic or mentally ill. Despite this and despite his parents raising their concerns, he was given a type of anti-psychotic medication to which he had previously had adverse reactions. He suffered a serious adverse reaction to the anti-psychotic medication which eventually killed him.

It is deeply concerning that Oliver’s parents had to cope not only with this tragic and seemingly avoidable death, but with the fact that the processes surrounding his death were so faulty. I know that the Minister is concerned about this case, but it is worth looking at what happened. Despite all the difficulties surrounding consent to the use of medication in Oliver’s case, the urgent authorisation form was completed on 26 October, a full five days after he was first admitted to Southmead Hospital. Despite being named on the DoLS form, Oliver’s mother Paula was not consulted in the DoLS process, and she tells me that later processes for investigating Oliver’s early death raised concerns about the lack of a best interest decision meeting.

In earlier discussions, the Minister seemed to rely on a best interest assessment process and believed that professionals would always take best interest into account. In this case, there was a dispute about Oliver’s treatment. A best interest decision meeting did not take place and Paula says that his parents were not listened to. Shamingly, the DoLS application was made the day after the fatal anti-psychotic medication was administered to Oliver. This means that the medication was administered at a time when he may have been deprived of his liberty without due process. The processes that should have been followed—assessing his best interests, consulting with his family—were not followed. Indeed, Paula McGowan only discovered that a DoLS application had been made for Oliver when the coroner raised it in a review a year after he died.

Our amendment seeks four specific safeguards that should be put in place where an emergency authorisation is granted. First, the cared-for person and anyone with an interest in their welfare should be informed of what is happening. This seems obvious, but there is nothing in the Bill to ensure that that will happen. It will be entirely possible for a person to be deprived of their liberty under an emergency authorisation, and for them or people interested in their welfare not to be told that this is the case. That is exactly what happened in the case of Oliver McGowan. In high pressure environments, such things may be forgotten, but we should not allow this to happen. An active duty in the Bill to provide this information means it cannot be something that falls by the wayside.

The second duty is that a written record be kept of the reasons for relying on an emergency authorisation. This will be important if a decision is challenged in the courts, because it provides a safeguard for the cared-for person and practitioners. When a case is appealed to the Court of Protection, as will happen from time to time, there needs to be a record of why certain decisions were made. If there is not, the court will inevitably have to embark on a lengthy process, relying on fallible recall to determine what the intentions were at the time. This would put practitioners at risk of their intentions being misinterpreted.

Producing such a written record should also clarify in the mind of a practitioner whether they are doing the right thing. There is a common saying that if you cannot explain something, you do not really understand it. By requiring practitioners to explain in writing why they have made certain decisions, we can make sure that they understand why they are making them.

The third requirement goes back to the right of the cared-for person and those close to them to know what is happening, and why certain decisions have been made. If they do not have this information, they have no access to their rights. We have settled for 24 hours as the period to provide such information so that it is done as quickly as possible. It is an urgent situation when there is an urgent authorisation. If this had been done in Oliver McGowan’s case, it might have allowed his parents to object to his deprivation of liberty and stop the administration of the anti-psychotic medication that killed him.

The fourth requirement relates to applications to the Court of Protection. I have already spoken about the importance of not expecting the cared-for person and their family to make an application to court unaided. That is particularly important in cases where an emergency authorisation is relied upon. The timescales on which arrangements are put in place are far shorter, so the window for applying to a court before arrangements are carried out is so slim as to hardly exist.

Under extreme pressure, when the cared-for person is undergoing life-sustaining treatment, I do not feel it is reasonable to expect them or their family to make an application to the courts. That would be a stressful situation, and court applications are confusing and time consuming at the best of times. That is why we want the duty to make a referral to court to be placed on the body carrying out the arrangements. That is likely to be a hospital and, as such, it will have far greater capacity to make such an application.

The proposal would also make it clear that there is a right to apply to the Court of Protection where an emergency authorisation has been granted. That is something that must be included in the Bill. Otherwise, the legal process for applying to the Court of Protection will be further prolonged. It may not be clear to a cared-for person or those close to them that such a right exists. If that is the case, they are unlikely to realise that there is a point in objecting, let along in engaging such a right.

We have pinned the criteria in the amendment on objection. If someone objects to a standard application for a liberty protection safeguard within certain limits, they will be referred to an approved mental capacity professional, but there is no provision for AMCPs to work on emergency authorisations. Indeed, it might not suit their skillset to do so. We have used the same criteria to determine whether the court should be engaged.

The amendment simply seeks to ensure that emergency authorisations do not create a second-class deprivation of liberty. The fact that it is an emergency should not mean that we disregard the rights of the cared-for person, as has happened in the past with fatal consequences for that young man, Oliver McGowan. I am sure that the Minister would agree that that is the case. As such, I hope she will accept our amendment.

Photo of Caroline Dinenage Caroline Dinenage Minister of State (Department of Health and Social Care) 11:15 am, 22nd January 2019

The ability to deprive someone of their liberty for a short period of time prior to an authorisation being in place or in an emergency is an important part of this model, as we have discussed. That can be done only to provide the person with life-sustaining treatment or to prevent a serious deterioration in their condition.

I spoke on amendment 16 about how this provision is limited to emergency and life-sustaining treatment or a vital act, and to the time limit that is legally enforced. We agree that the provision of information to the cared-for person and those who care for them is extremely important to help them understand the process and exercise their rights. I have committed in respect of other clauses to look again at information and how quickly and early it is disseminated and distributed. I agree in principle with the information part of the amendment.

My only reservation is that, given the nature of the situation, medical professionals have to work urgently in a short period of time, so the amendment might not be practical in practice. However, I agree 100% with the hon. Member for Worsley and Eccles South that information needs to be given out and that people need to understand what is happening to them and their loved ones, so I will commit to look again at this matter.

We agree, and I confirm that, when people are deprived of their liberty, records will need to be kept and those will need to be available after the event. We will outline the details in the statutory code of practice, including how that information should be shared with others.

The amendment outlines circumstances when objections to deprivation of liberty for the provision of life-saving or sustaining treatment should be referred immediately to the Court of Protection. Under the Bill, all people in those cases will have the ability to challenge emergency authorisations in the Court of Protection via section 16 of the Mental Capacity Act, and it is unnecessary for that to be made explicit again in the Bill. The applications will also operate alongside a full authorisation made under new schedule AA1 where appropriate and, of course, there will be full recourse to the court to challenge those authorisations too. For that reason, the Government cannot support the amendment.

Photo of Barbara Keeley Barbara Keeley Shadow Minister (Mental Health and Social Care)

I am disappointed that the Minister will not accept the amendment because I have given her a very powerful example of why she should. I had not understood, until I engaged with Paula McGowan recently, how defective the processes were. I know that the Minister has been engaged in that case, so I ask her to think about how it adds to the burden of grief and bereavement for the parents that the processes that should have protected a young person such as Oliver were not engaged properly.

The point about information is important; the McGowans were not informed of their rights or listened to. There was no best interest meeting for Oliver. Had that happened, his parents could have pointed out the danger of the anti-psychotic medication. The Minister has just said that medical and care professionals are busy. That is the problem, is it not? That is how these cases happen—in the busyness of urgent care. The warnings about the medication were just ignored. That is why we very much need information to be given.

The Chair adjourned the Committee without Question put (Standing Order No. 88).

Adjourned till this day at Two o’clock.